Coastal Services Center

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National Environmental Policy Act (NEPA) Compliance Requirements for Beach Nourishment Programs

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Abstract

The National Environmental Policy Act (NEPA) of 1969, as amended (Pub. L. 91-190, 42 U.S.C. 4321-4347, January 1, 1970, as amended by Pub. L. 94-52, July 3, 1975, Pub. L. 94-83, August 9, 1975, and Pub. L. 97-258, § 4(b), Sept. 13, 1982) is the primary law in the United States that governs environmental review of major construction projects, including beach nourishment projects. The NEPA compliance process and general NEPA compliance issues of concern for decision-makers for beach nourishment projects are addressed in this paper. In addition, measures taken to avoid problems during the completion of the NEPA documentation process are described.

The heart of the NEPA process is the early scoping of issues and the development of acceptable and clearly defined alternatives. The impacts of each alternative (including no action) are then determined, and measures to mitigate potentially adverse impacts are developed. This sequence must be followed to comply with NEPA. The majority of problems that arise during the NEPA review process are related to inadequate public involvement and issue identification in the early phase of a project (scoping), inadequate development of project alternatives, use of poor quality data in defining baseline conditions, and inadequate assessment of cumulative impacts. The key components to a successful NEPA project are early planning, effective coordination, and use of quality baseline data. This paper provides a summary of the key features of NEPA with regard to beach nourishment projects and summarizes ways to meet the requirements of this complex law. Integration of NEPA with US Army Corps of Engineers Water Resource Planning (WRP) procedures, the primary process by which beach nourishment projects are reviewed, is also addressed.

Introduction / Background

The objective of this paper is to provide information that will assist decision-makers in complying with NEPA on beach nourishment projects. The specific objectives of this paper are to: (1) describe the overall NEPA process, including integration of NEPA with the US Army Corps of Engineers (USACE) Water Resource Planning process (the primary means by which these projects are reviewed); (2) identify typical NEPA compliance issues that relate to beach nourishment projects; and (3) provide suggestions for assuring that beach nourishment projects comply with NEPA requirements.

NEPA is the primary environmental law that affects proposed federal actions in the United States, including beach nourishment projects. NEPA requires lead agencies to evaluate the environmental impacts associated with federally-funded projects. The lead agency on federally funded beach nourishment projects is the U.S. Army Corps of Engineers (USACE), which is required to implement NEPA in conjunction with Section 404 Clean Water Act permits issued for these projects. NEPA compliance is required as part of the Section 404 permitting process. As stated in 36 CFR Part 336.1(a), Section 404 of the Clean Water Act governs the discharge of dredged or fill material into waters of the U.S. Although the Corps does not process and issue permits for its own activities, the Corps authorizes its own discharges of dredged or fill material by applying all applicable substantive legal requirements, including public notice, opportunity for public hearing, and application of the section 404(b)(1) guidelines. Thus, NEPA and Section 404 permitting are interrelated. Diagrams of the generalized sequence of events in NEPA as well as a more detailed summary of the NEPA process, are provided in Figures 1 and 2.

Provisions for complying with the NEPA are identified in the Council of Environmental Quality guidelines (40 CFR Parts 1500-1508) and are supplemented by Army Regulation ER 200-2-2 (USACE 2000). In addition, the USACE has its own six-step Water Resource Planning process (WRP) developed under the Water Resources Planning Act, as amended (WRPA)(42 U.S.C. 1962a-2)(as described in Engineering Regulation ER 1105-2-100). The WRP process is integrated with NEPA and Section 404 permitting of beach nourishment projects (Figure 3, Table 1). The following web page contains a detailed summary of the USACE six-step planning process: http://www.usace.army.mil/inet/functions/cw/cecwp/cecwp_temp/steps.htm. Please also refer to the papers in this series entitled "Effective Integration of Legal and Regulatory Requirements Into Beach Nourishment Projects" and "Assessment of Section 404 Clean Water Act Regulatory Issues" for a further discussion of Section 404 and the WRP process.

The objective of NEPA is to help the lead agency to approve well planned projects, by selection of a preferred alternative that effectively avoids and minimizes potential adverse environmental impacts. The preferred alternative is defined in the regulations as the "least environmentally damaging practicable alternative." The term practicable in this definition means a project that is feasible and can be done within logistical, engineering, cost, and environmental constraints. This implies that the preferred alternative may not in fact be the one that has the least environmental impact, since factors may be important. The burden of proof, however, for demonstrating that the "least environmentally damaging practicable alternative" is selected is placed on the project proponent. The preferred alternative is selected through a lengthy process that involves: (1) obtaining input from the public and the agencies on their issues and concerns (a process called scoping); (2) using the information obtained in public scoping to develop a range of feasible alternatives; (3) assessing existing conditions in the study area; (4) assessing the impacts of the alternatives; (5) selecting a preferred alternative; and (6) identifying measures to avoid, reduce and/or minimize impacts associated with the preferred alternative (mitigation measures).

NEPA is a complex process that requires extensive planning and coordination among the project proponent, government agencies, and the public. It also involves a thorough identification and review of all environmental issues. Effective planning of the NEPA compliance program for a given beach nourishment project is needed to avoid potentially adverse impacts to the environment.

Description of the NEPA Process

The NEPA compliance process is triggered if a beach nourishment project is either funded by federal dollars or a Section 404 Clean Water Act permit is submitted. Therefore, NEPA requirements drive the Section 404 process to a large degree, since NEPA is the overarching environmental law that governs federal agencies. Therefore, all beach nourishment projects are required to comply with this far-reaching law. In fact, NEPA triggers over 60 different federal environmental laws and executive orders (called "cross-cutters," because they cross over other regulatory requirements). Examples of cross-cutting laws and Executive Orders are as follows:

• Clean Water Act;
• Endangered Species Act;
• National Historic Preservation Act;
• Archaeologic and Historic Preservation Act;
• Historic Sites Act of 1935 (PL 74-292; 16 U.S.C. 461 and following)
• National Historic Preservation Act, as amended (PL 89-665; 16 U.S.C. 470)
• Archaeological Resources Protection Act of 1979 (PL 96-95; 16 U.S.C. 470aa-11)
• Wild and Scenic Rivers Act;
• Coastal Zone Management Act;
• Coastal Barriers Resources Act;
• Wilderness Act;
• Farmland Protection Policy Act;
• Executive Order 11990- Protection of Wetlands; and
• Executive Order 11988 – Protection of Floodplains.

Please refer to the paper in this series entitled "History and Evolution of Laws Relating to Beach Nourishment" for a more detailed discussion of these various laws and executive orders. A summary of the requirements of each of these laws can also be found at the following EPA web site (USEPA 1991): http://es.epa.gov/oeca/ofa/crosscut.html.

For federally funded beach nourishment projects, a National Economic Development (NED) plan is also required. This plan is presented in the NEPA document as a separate section. NED plans are typically developed in accordance with ER 1105-2-100 by adopting the procedures and policies of the Water Resource Council's (WRC) Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies, Chapter II – National Economic Development (NED) Benefit Evaluation Procedures (March 10, 1983). NED principles are utilized by the federal government to assess economic values of all water resource projects, to assist in making project scope and implementation decisions, and to determine the total net benefits of all phases of a project. From this information, the NED plan is formulated and net benefits are maximized. NED requires identification of alternative plans that could be recommended or selected, and it culminates in the selection of the recommended plan or the decision to take no action. Under the NED principle, the best, or NED, plan is the one that maximizes net benefits. Table 2 summarizes the key aspects of NED as related to beach nourishment projects.

Compliance with the NEPA/WRP process requires several years for a major beach nourishment project. The assessment conducted to comply with NEPA is documented in the form of an Environmental Assessment (EA) if impacts are not considered significant, or more detailed Environmental Impact Statement (EIS) if impacts are significant. A schedule for a typical NEPA EIS for a beach nourishment project, demonstrating the large number of technical project components that must be planned and completed successfully, is provided as Figure 3.

The following is a summary of the most important aspects of NEPA with regard to beach nourishment projects:

• It is an expensive and time-consuming process involving completion of detailed issue identification, public participation, and technical assessments of baseline conditions, impacts, and mitigation. The intent of the agencies in creating this process is to assure that the "least environmentally damaging practicable alternative" is selected. This alternative satisfies the requirements of NEPA and helps to assure that environmental issues are identified early on in the process and fully addressed by the beach nourishment project proponent. This takes time because extensive and detailed scientific studies are required to identify all sensitive resources present in the area and the impacts of alternative project sites and designs on these resources.
• NEPA projects must be carefully planned to be successful. Extensive and effective agency coordination is required to make the process go smoothly. The primary federal review agencies that comment on NEPA documents prepared in conjunction with beach nourishment projects include the US Fish and Wildlife Service, National Oceanic and Atmospheric Administration (NOAA)/National Marine Fisheries Service, and the US Environmental Protection Agency (USEPA). State environmental agencies also review NEPA documents and make comments. Issues identified by these and other agencies are made in the scoping phase of a project as well as following the release of the Draft EIS or EA. The Final EIS consists of responses to agency and public concerns, helping to assure the intent of NEPA is met. Agency comments and concerns are therefore a vital part of the NEPA process because they help shape the selection of the least environmentally damaging alternative. In addition, they weigh heavily in the overall ultimate approval of a project. Should any issues or concerns be overlooked in the NEPA document, the project probably will not move forward. The goal of NEPA is therefore to avoid impacts on sensitive resources by careful planning and selection of a range of sharply defined alternatives. The agency input and overview helps assure that this NEPA goal is achieved.
• In conducting a NEPA assessment, quality data must be collected that will stand up in a court of law.
• All issues surrounding a project must be identified early on in the scoping phase. Scoping of the issues by the public in the early phase of the project is used to develop a set of NEPA alternatives for assessment.
• The alternatives are the "heart" of the NEPA process and are often the component that is not developed adequately.
• Some projects are categorically excluded from NEPA (categorical exclusion or CATEX) but beach nourishment projects are not because they have the potential for adversely impacting the environment.
• An Environmental Assessment (EA) is typically prepared first in order to objectively determine whether there are potential significant adverse impacts of the proposed action and the alternatives. This is a less detailed document used to make a decision whether or not to prepare an EIS. Minor beach erosion control projects could qualify for an EA, and major projects would most likely require an EIS.
• If significant adverse impacts are predicted, an Environmental Impact Statement (EIS) is prepared. If not, a Finding of No Significant Impact (FONSI) is prepared. A mitigated FONSI is prepared if the predicted impacts can be avoided, reduced, or minimized.
• The intent of NEPA is to assure that informed decisions regarding implementation of a project are made by the lead regulatory agency.

Example NEPA Compliance Issues Associated with Beach Nourishment Projects

NEPA issues have proven to cause delays in the completion of beach nourishment projects because review agency concerns were not adequately addressed. Table 3 summarizes typical NEPA compliance issues that have arisen on various beach nourishment projects along the Atlantic seaboard and the coast of the Gulf of Mexico. These issues have been identified by EPA and other agencies during their review of the EIS or EA. The typical types of issues are summarized as follows:

Inadequate Assessment of Baseline Conditions and Direct Impacts: NEPA requires a thorough, objective, and scientifically valid definition of existing (baseline) conditions in the areas that could be affected by a beach nourishment project. Many studies have been delayed because they failed to accurately or completely document the presence of an endangered species and the potential impacts of beach nourishment, for example (USEPA 1998) (Figure 4 and 5). In recent projects in Florida, impacts on valuable hard bottom and soft bottom benthic communities in borrow areas were not effectively addressed (USEPA 1996), for example. An example of the concern regarding these effects on near shore benthic communities in the southeast was shown recently in a joint letter sent to the USACE by over 70 scientists. A summary of their concerns and technical issues in the southeastern United States is provided in Table 4. These types of issues point to the need to provide objective, scientifically defensible information. However, if few studies have been conducted, the applicant may have to undertake these in the monitoring phase to demonstrate that the project will not have adverse effects. This issue is at the center of the current controversy over the effects of beach nourishment projects.

Inadequate Assessment of Cumulative Impacts: The cumulative impacts of a single beach nourishment project in combination with other similar projects in the area of influence were not effectively addressed in several recent major beach nourishment projects (Table 3). Failure to address these issues can lead to delays in the NEPA review process. This is one of the most important emerging issues in assessing the effects of beach nourishment projects, and has been a primary issue raised by the USEPA reviewers.

Inadequate Assessment of Long-Term Impacts: The cumulative, long-term direct impacts of a project on nearshore resources were not addressed (Environmental Defense 2001)(Table 4).

In addition to the issues listed in Tables 3 and 4, the following issues are also known to cause delays during the NEPA process:

Failure to Develop an Adequate Range of Alternatives: The following is a summary of key information regarding development of alternatives under NEPA:

• If the alternatives analysis is inadequate, the project can be delayed. This problem can be avoided by putting a major effort into early public scoping and issue identification, and then using this information to create a full and comprehensive set of variable alternatives.
• Alternatives are the key to achieving avoidance, the first required step in NEPA. The last two steps involve minimization of unavoidable impacts, and compensation for remaining impacts, after avoidance and compensation have been achieved. The NEPA process requires that this sequence be adhered to, or the project is not approved. This sequence is required to obtain the Section 404 permit as well, and is the basic guideline for reviewing permits under the Section 404(b)(1) Guidelines.
• Avoidance is achieved through effective development of alternatives.
• Minimization is achieved by devising means of further reducing any unavoidable impacts once avoidance is achieved.
• Compensation for impacts is achieved after avoidance and minimization have been achieved. Compensation is achieved through restoration, preservation, enhancement, or creation of habitat to offset the impacts of the project.

A thorough and objective evaluation of a full range of alternatives is probably the single most important aspect of successfully completing a project. Table 5 provides an example of the large number of alternatives that can be assessed on beach nourishment projects, based on an EIS prepared in Florida by the USACE, Jacksonville District (USACE 2002c and USACE 1996).

Poor or Late Coordination with the Permitting and Review Agencies: Late or inadequate coordination with the USACE and other agencies will cause project delays since the agencies may have concerns that are not identified early on in the process. These issues are then raised by the agencies during the document review, and the entire NEPA process may be delayed in order to address the issue(s).

Suggestions for Avoiding NEPA Compliance Problems on Beach Nourishment Projects

The following are suggestions to decision-makers for avoiding NEPA compliance problems on beach nourishment projects, and for minimizing delays:

• Conduct early coordination meetings with the USACE, other review agencies, and all other stakeholders to identify their concerns "up front." For a Section 404 permit, this is called a "Preapplication Meeting," the importance of which cannot be overstated. Early coordination with all agencies and stakeholders will build consensus on project issues and concerns and will communicate to the agencies how the permit applicant will address each issue under NEPA.
• Conduct an effective public participation and scoping program and use that input to develop issues. Issues and concerns regarding the project are first obtained through formal public scoping, usually using mailouts or providing information in public meetings held by the lead agency. Agency and public comments are obtained and then used to develop a suitable range of alternatives. The alternatives are then carried forth into the EIS or EA for analysis. A common problem with NEPA projects is that the alternatives are often not addressed adequately.
• Understand the complexities of the NEPA and WRP processes. NEPA and WRP are complicated and time consuming processes (a total of approximately 8 years is required for major beach nourishment projects), and if not conducted in a thorough and sequential manner, can lead to significant delays and added costs. Early coordination with the USACE, other agencies, and all other stakeholders is the key to undertaking this process. A related complexity is that completion of a successful NEPA project requires following the sequence of avoidance, minimization, and compensation.
• Prepare a complete, thorough, and defensible EIS or EA. Objective and defensible environmental documentation of baseline conditions and impacts will speed up the agency review process by addressing issues effectively, thereby avoiding the need to revisit issues at a later date. Complete objective and quality studies of existing conditions to assure that the impacts of the project will be clearly identified, and a suitable range of alternatives is developed. Track the information collected in a thorough administrative record. Ensure that public comments have been adequately addressed. Summarize all of the information in the EIS or EA in an understandable manner.

The paper in this web page entitled "Assessment of Section 404 Clean Water Act Regulatory Issues" contains additional measures that can be used to help assure that the permitting process is completed in an effective manner by applicants.

References

Table 6 contains information on some key NEPA references, with notes on how these are relevant to decision-makers involved in beach nourishment projects. The following references were also used in this paper:

U. S. Army Corps of Engineers (USACE). 2001. "Provisional Section 404 Permit and Draft Environmental Assessment of Proposed Relocation of Mason Inlet, New Hanover County, NC. Agency: Public Affairs Office. United States Army Corps of Engineers. Wilmington District. Wilmington, North Carolina." November 13, 2001. NR 01-11-13. Source: http://www.saw.usace.army.mil/pao/Press%20Releases%202001/P-R%20Nov13-01.PDF.

USACE 2002a. "Ecosystem Management and Restoration Information System. USCAE Waterways Experiment Station, Vicksburg, MS." Source: http://www.wes.army.mil/el/emrrp/emris/.

USACE. 2002b. "Guidance For Applicants. Suggested Staffing. Procedural Implementation of Section 404 of the Clean Water Act." U.S. Army Corps of Engineers, Savannah District. Source: http://www.sas.usace.army.mil/permit/nepa.pdf.

USACE. 2002c. "Coast of Florida Erosion and Storm Effects Study." US Army Corps of Engineers, Jacksonville District, Jacksonville, Florida. Source: http://www.saj.usace.army.mil/dp/spp.htm.

USACE. 1996. Final Environmental Impact Statement for the Coast of Florida Erosion and Storm Effects Study, Region III, Palm Beach, Broward and Dade Counties, Florida. Prepared for the US Army Corps of Engineers, Jacksonville District, by Gulf Engineers and Consultants, Inc. Baton Rouge, Louisiana.

U. S. Environmental Protection Agency (USEPA). 1991. "Cross-Cutting Environmental Laws. USEPA Office of Federal Activities. A Guide For Federal/State Project Officers." January, 1991. Source: http://es.epa.gov/oeca/ofa/crosscut.html.

USEPA. 1996a. "Updated Information concerning Shore Protection for the Ocean Ridge Segment from the Martin County line to Lake Worth Inlet and from the South Lake Worth Inlet to the Broward County Line, Palm Beach, Martin and Broward Counties, FL." ERP No. DB-COE-E30032-FL Rating EC2, Palm Beach County Beach Erosion Project. Source: http://www.epa.gov/EPA-IMPACT/1996/May/Day-31/pr-16606.html.

USEPA. 1996b. "Brevard County Shore Protection Study, Implementation, Beach Restoration Project, Brevard County, FL." ERP No. D-COE-E30037-FL Rating EC2. Source: http://www.epa.gov/EPA-IMPACT/1996/October/Day-25/pr-17091DIR/pr-17091.html.

USEPA. 1997 b. "Intent to Prepare a Draft Environmental Impact Statement (DEIS) for Dare County Beaches, Dare County, North Carolina." Agency: U.S. Army Corps of Engineers, DoD. Action: Notice of Intent. Source: http://www.epa.gov/EPA-IMPACT/1997/July/Day-23/i19334.htm.

USEPA. 1997a. "Lower Cape May Meadows—Cape May Point Feasibility Study, Ecosystem Restoration, New Jersey Shore Protection Study, Cape May County, NJ." ERP No. D-COE-C39010-NJ Rating EC2. Source: http://www.epa.gov/fedrgstr/EPA-IMPACT/1998/March/Day-27/i8110.htm and http://www.epa.gov/EPA-IMPACT/1998/October/Day-16/i27874.htm and http://www.epa.gov/EPA-IMPACT/1997/September/Day-12/i24199.htm.

USEPA. 1998a. "Endangered and Threatened Species; Threatened Status for Johnson's Seagrass." Federal Register: September 14, 1998 . 50 CFR Part 227. Volume 63, Number 177, Page 49035-49041. Source: http://www.epa.gov/EPA-SPECIES/1998/September/Day-14/e24357.htm.

USEPA. 1998b. "Atlantic Coast of Long Island Jones Inlet to East Rockaway Inlet Storm Damage Reduction Project, Construction, Long Beach Island, Nassau County, NY." ERP No. F-COE-C39009-NY. Source: http://www.epa.gov/EPA-IMPACT/1998/September/Day-04/i23943.html.

USEPA. 1999. "Fort Pierce, Florida Beach Nourishment Project." Web Address: http://www.epa.gov/EPA-SPECIES/1999/May/Day-28/e13556.htm.

USEPA. 2000. "Draft Environmental Impact Statement for the Raritan Bay and Sandy Hook Bay, Hurricane and Storm Damage Reduction Study, Port Monmouth, New Jersey." Agency: U.S Army Corps of Engineers, DoD. Action: Notice of Availability. Source: http://www.epa.gov/EPA-IMPACT/2000/March/Day-10/i5839.htm.

USEPA. 2001a. "US Fish and Wildlife Service, Department of Interior; Endangered and Threatened Wildlife and Plants; Final Determination of Critical Habitat for Wintering Piping Plovers." Final Rule, July 10, 2001. Source: http://www.epa.gov/EPA-IMPACT/2001/July/Day-10/i16905a.htm.

USEPA. 2001b. "Draft Supplement Environmental Impact Statement (SEIS) to the 1996 Final Environmental Impact Statement for Coast of Florida Erosion and Storm Effects Study, Region III, Palm Beach, Broward, and Dade County, FL, To Address an Application for a Department of the Army Permit to Nourish Phipps Beach in Palm Beach County, FL." Agency: U.S. Army Corps of Engineers, DoD. Source: http://www.epa.gov/EPA-IMPACT/2001/August/Day-28/i21699.htm.